CURRENT LEGAL PROBLEMS 1997: VOLUME 50 -- LAW AND OPINION AT THE END OF THE TWENTIETH CENTURY by Michael Freeman (Editor). Oxford: Oxford University Press, 1997. 452pp. Cloth. $88.00. ISBN 0-19-826599-9 (cloth). 0-19-826787-8 (paper).

Reviewed by Daniel C. Kramer, Pol.-Eco.-Phl. Department, College of Staten Island, City University of New York. E-mail kramer-d@postbox.csi.cuny.edu
 

Every year the Faculty of Laws of University College of London University sponsors a series of lectures on current legal issues. These lectures are then published as chapters as a book: this is the fiftieth such work. In this particular volume a majority of the chapters deal with fields of English/Welsh or United Kingdom law; but three of the fourteen are on more general topics.

To take those three first (though they appear in the second half of the book), David Nelken discusses "The Globalization of Crime and Criminal Justice." He eschews describing in detail any one aspect of this phenomenon, e.g., Colombian drug lords trying to flood the United States with illegal narcotics. What he does do is explain the concept of globalization and point out that many criminals whose activities transcend national borders are not suave sophisticates but individuals whose values and perspectives are those of their region or nation. He rightly adds that sometimes the line between illegal and legal transnational activities and institutions is blurry. The penultimate chapter of the volume is Andrew Lewis' "Roman Law in the Middle of Its Third Millenium". Lewis' sketch of the impact of this jurisprudence should stimulate some subscribers to this list to read more about it. Though admitting that it has little practical relevance today, he furnishes us with a fascinating anecdote about how John Adams employed it in a 1766 Admiralty Court case in which he was an attorney. Maurice Mendelson's "International Law in the Past Half Century - and the Next?" emphasizes that over the past fifty years, the actors in this field have come to include not only Europeanized nations but third-world countries, non-governmental organizations, transnational corporations and even individuals.

The chapters on United Kingdom law (many of which cover just English/Welsh jurisprudence) are not designed to be lengthy descriptions of what the law is. They are, rather, disquisitions on history, discussions about several main issues currently under debate, and predictions about the future. Dawn Oliver's "The Changing Constitution in the 1990s" notes the many ways in which British Constitutional Law has different emphases from those of a century or even a half-century ago. For example, there is much less discussion of the responsibility of the individual Cabinet minister for foul-ups in his/her domain and much more talk about how to hold accountable the thousands of public agencies and authorities that now crowd the British landscape. There is much more attention paid to civil liberties; a lot of talk about the creation of regional assemblies for Scotland, Northern Ireland and Wales; and considerable worry that the institutions of the European Community will be responsible neither to its member states nor to their individual citizens. It is a pity that Prof. Oliver has space to mention these issues only tangentially; for each deserves its own chapter. (To be fair, some of these matters were treated in more detail in earlier volumes in the series.) Her comment (p.10) that "Fifty years ago the relations between the nations of the United Kingdom were not matters of controversy" is true; but she could have submitted that during the first two decades of this century the issue of "Home Rule for Ireland" was one of the hottest on the British political agenda. She asserts (ibid.) that "devolution is about securing that government bodies are accountable, and therefore responsive, to local electorates by moving power from Westminister and Whitehall to the nations and regions of Britain". True enough; but the recent histories of Quebec and ex-Yugoslavia indicate the threat to national unity in giving ethnic regions of a country a considerable degree of autonomy.

Ewan McKendrick's "English Contract Law: A Rich Past, an Uncertain Future" assesses recent developments in that discipline, including the increased role played by Parliament. He feels, as do many of his co-authors, that the regulations developed by the institutions of the European Community are about to have a significant impact on United Kingdom law. He laments the reluctance of English/Welsh judges to accept the position (which is the majority rule in the United States) that C should be able to sue on a contract made by A and B for the benefit of C. Bob Hepple's "Negligence: The Search For Coherence" wants to reduce albeit not eliminate the concept of "fault" in negligence law. His defense of this position is philosophical rather than empirical. A summary of the experience of various jurisdictions that have no-fault automobile insurance statutes would have been a valuable supplement to his theorizing. On p. 93 he makes the elliptical comment that "it is difficult to believe that the National Health Service can continue to support the costs of a fault-based system". He should have spelled out more clearly that medical malpractice suits are becoming a major problem in England/Wales. It would also have been interesting to see what rules he would propose that would balance the moral obligation to compensate patients hurt by their physicians' carelessness against the need to keep doctors and the National Health Service from bankruptcy.

Andrew Burrows' "Restitution: Where Do We Go From Here?" traces one positive recent development in the common law of England/Wales: the recognition of the doctrine of unjust enrichment -- the idea that those who get money or property unfairly have to give it back. He discusses the ideas and the writings (including the 1937 Restatement of Restitution published by the American Law Institute) that led to the change. One interesting section of Alison Clarke's "Property Law: Re-establishing Diversity" argues that the law should continue to recognize communal property rights, e.g., the right of all the farmers in an area to use certain fields or the right of all the residents of a community to use a green. She is happy that lawyers and economists have recently devoted considerable ink to the communal property issue (some admittedly opposing the idea), for she is skeptical "about the desirability, or even viability, of a society wholly dominated by private property".(p. 136) Of course it would be horrific were every acre of a nation privately owned. But she could have observed that when a narrowly-defined community holds title to a resource, there is a danger that it will exclude outsiders simply because its members dislike their religion, their poverty or their skin color. Hazel Genn's "Understanding Civil Justice" points out correctly that scholars and policy-makers in England/Wales are much less concerned with civil than criminal justice. She concludes that increased access to the court system would on balance be desirable. It is disappointing that there is not more than a paragraph's discussion in this article about the relative generosity and the high cost of the English/Welsh civil court legal aid system. It is also surprising that she fails to note that English/Welsh county courts function as informal and popular "small claims" courts when the amount of money in dispute is low. The judge in these cases acts like an arbitrator and does not have to adhere strictly to the rules of evidence.

Jeffrey Jowell's "Restraining The State: Politics, Principle and Judicial Review" charts and rightly welcomes the willingness of the English/Welsh courts since the mid-1960s to overturn arbitrary or unfair decisions of public officialdom. ("Judicial review" as used here means judicial review of administrative decisions rather than judicial consideration of the constitutionality of statutes.) Ian Dennis' "The Critical Condition of Criminal Law" notes that the criminal law of England and Wales is a mishmash of common and statutory law and argues convincingly that it is in need of codification. Unhappily, the chapter ignores a couple of major developments in the criminal law that were successfully being pushed through Parliament by a floundering Tory Party as Prof. Dennis was writing. These are the adoption of a "two strikes and you're out" (or rather in-prison-for-life) law for offenders convicted of a second major crime, and of a "Megan's Law" requiring pedophiles and persons convicted of other serious sexual offenses to register with the constabulary.

Ben Pettet's "The Stirring of Corporate Social Conscience" is a fascinating analysis of whether the law should assume that the sole purpose of a company is to make as much money as possible for the shareholders or whether it should posit that the corporation also has major responsibilities to its customers, its workers, and its community. Michael Freeman's "Family Values and Family Justice" attacks the position of so-called "family values" advocates who claim that increased divorce, abortion and sex outside marriage are destroying the family and threatening to undermine society. Freeman maintains that if we really wish to strengthen the family, we must make day care more available so that married and single mothers can work and also allow both mother and father to take leave without total loss of earnings when a child is born. He also persuasively contends that the most recent divorce reform act, The Family Law Act of 1996, is in many ways consistent with the traditional vision of the two-parent family as it increases the time that must elapse before a divorce decree can be issued when there are school age children in the family and encourages the husband and wife to enter mediation. Finally, R.W. Rideout's "Industrial Relations - The Empire Strikes Back" bemoans the attack on collective bargaining and labor union power conducted by some members of the judiciary and, much more successfully, by the Tory government of Margaret Thatcher.

As with most books resulting from conferences, CURRENT LEGAL PROBLEMS 1997 lacks a unifying theme (save the trite one that the legal system is about to enter the 21st century). "Theory" should have replaced "Opinion" in the subtitle of the volume: no chapter contains a systematic study of public opinion on any issue but most deal in some depth with relevant political or legal theories. In previous paragraphs I criticized the omission of certain matters from several of the contributions. But my reservations are minor ones. All the chapters are lucidly written and intellectually bracing. Taken together they cover a wide range of important topics. The book is, therefore, a welcome addition to the literature of public law.